In reviewing the denial of an MJOA, we review the evidence in the light
most favorable to the state. State v. Grey, 175 Or App 235, 237, 28 P3d 1195 (2001), rev
den, 333 Or 463 (2002). Here, the following material facts are uncontroverted.
Defendant was convicted of numerous crimes arising out of a series of events that
occurred over several days, primarily involving various assaults on his girlfriend, who
was the mother of defendant's infant child. One of those convictions--the only conviction
at issue on appeal--was for felony fourth-degree assault, based on an incident in which
defendant injured the victim while forcibly cutting her hair. That incident was the basis
of Count 4 of the indictment, which alleged:

"The defendant, on or about October 9, 2004, in Yamhill County,
Oregon, did unlawfully and intentionally, knowingly, and/or recklessly
cause physical injury to [the victim] by/while cutting her hair and the
assault was committed in the immediate presence of, or witnessed by, a
child or stepchild of the defendant or victim, or a minor child residing
within the residence of the defendant or victim and defendants, and
defendant's conduct constituted domestic violence; contrary to statute and
against the peace and dignity of the State of Oregon."

Defendant moved for a judgment of acquittal as to both of the disjunctive
felony enhancement elements of "witnessed by" and "committed in the immediate
presence of." The court granted the motion as it related to the allegation that the assault
was "witnessed by" the infant, given the absence of any evidence that the infant perceived
the assault as it occurred. See ORS 163.160(4) ("For the purposes of subsection (3) of
this section, an assault is witnessed if the assault is seen or directly perceived in any other
manner by the child."); see generally State v. Bivins, 191 Or App 460, 83 P3d 379 (2004)
(applying definition of "witnessed by" in ORS 163.160(4)). However, the trial court
denied the MJOA as it related to the alternative allegation that the assault had occurred in
the child's "immediate presence." In so ruling, the court apparently accepted the
prosecutor's argument that the "committed in the immediate presence" element was
satisfied where the victim always had ready "access to the little baby." As noted, the jury
subsequently convicted defendant on Count 4.

On appeal, defendant renews his arguments that, on this record, the state
failed to prove that the assault occurred in the "immediate presence" of the child. As
noted, the state concedes that defendant is correct. Nevertheless, we have an independent
obligation to determine whether that concession is well-founded. See, e.g., State v. Enakiev, 175 Or App 589, 593 n 4, 29 P3d 1160 (2001) (notwithstanding concession of
error, we review propriety of ruling for errors of law).

We begin with ORS 163.160. That statute provides:

"(1) A person commits the crime of assault in the fourth degree if the
person:

"(b) With criminal negligence causes physical injury to another by
means of a deadly weapon.

"(2) Assault in the fourth degree is a Class A misdemeanor.

"(3) Notwithstanding subsection (2) of this section, assault in the
fourth degree is a Class C felony if the person commits the crime of assault
in the fourth degree and:

"(a) The person has previously been convicted of assaulting the same
victim;

"(b) The person has previously been convicted at least three times
under this section or under equivalent laws of another jurisdiction and all of
the assaults involved domestic violence, as defined in ORS 135.230; or

"(c) The assault is committed in the immediate presence of, oris
witnessed by, the person's or the victim's minor child or stepchild or a minor
child residing within the household of the person or victim.

"(4) For the purposes of subsection (3) of this section, an assault is
witnessed if the assault is seen or directly perceived in any other manner by
the child."

(Emphasis and boldface added.)

To determine the legislature's intent with respect to the "committed in the
immediate presence" element--as distinct from the alternative, and independently
sufficient, "witnessed by" element--we begin by examining the statute's text, giving words
of common usage their plain meaning. PGE v. Bureau of Labor and Industries, 317 Or
606, 610-11, 859 P2d 1143 (1993). Both "immediate" and "presence" are words of
common usage. "Immediate," as used in this context, can mean:

"1 a: acting or being without the intervention of another object, cause, or
agency :direct, proximate <the ~ cause of death> * * * 4 : characterized
by contiguity : existing without intervening space or substance <bring the
chemicals into ~ contact very cautiously> ; broadly: being near at hand :
not far apart or distant <hid the money in the ~ neighborhood>[.]"

Webster's Third New Int'l Dictionary 1129 (unabridged ed 2002) (italics in original).
"Presence," as used in this context, can mean:

"1 a: the fact or condition of being present : the state of being in one place
and not elsewhere : the condition of being within sight or call, at hand, or in
a place being thought of : the fact of being in company, attendance, or
association : the state of being in front of or in the same place as someone
or something <the ~ of free nitrogen bubbles in the body tissues --H. G.
Armstrong> * * * 2 a: the part of space within one's ken, call, or influence :
the vicinity of or the area immediately near one : the place in front of or
around a person <he came into the ~ of the king> <in her ~ he could
scarcely speak> <removed his hat in the ~ of ladies>[.]"

Id. at 1793.

"Immediate" is, of course, an adjective, and connotes a relative, rather than
absolute, concept. Its significance can be properly understood only in relation to the term
that it modifies. Thus, for example, "immediate," in the broad sense of "not far apart or
distant," could, in some usages--e.g., "immediate vicinity"--describe a circumstance in
which a person was in a different room, but nearby. Here, however, "immediate" in ORS
163.160(3) modifies "presence." The two terms, in mutually reinforcing combination,
connote a direct, unobstructed concurrency of space. That is, "the state of being in one
place" "without the intervention of another object[.]"

The statutory context corroborates that construction. As noted, ORS
163.160(3)(c) describes two disjunctive "triggers" by which a fourth-degree assault will
constitute a felony, rather than a misdemeanor: "committed in the presence of" or
"witnessed by." A broad construction of the former, as encompassing any circumstance
in which a minor child is nearby, including within the same house, would obviate the
need for the latter. That is, there would be no need ever to prove that the child saw or
"directly perceived" the assault, ORS 163.160(4), if the child's mere presence in the house
would be sufficient to establish the "committed in the immediate presence" alternative.
To so construe ORS 163.160(3)(c) would violate our obligation to, "if possible," "give
effect to all" provisions of a statute. ORS 174.010. Rather, by explicitly providing for
two disjunctive, alternative "triggers," the legislature manifested its intent that fourth-degree assault constitute a felony in either of two distinct circumstances: (1) the assault
occurs in the child's "immediate presence," regardless of whether the child sees or
otherwise perceives the assault and (2) the child is physically separated from the assault
but, because the child is nearby--presumably, at least within earshot--the child perceives,
and thus "witnesses," the assault.

In sum, when viewed in context, the only plausible meaning of "in the
immediate presence" is that the assault must have occurred in the same, physically
unseparated, space where the child was located. Here, as noted, the assault occurred in
one room, the bathroom, while the child was located in a separate room, with a wall
between the two. Accordingly, defendant's MJOA on Count 4 should have been granted,
because the evidence did not support the elevation of the offense from a misdemeanor to
a felony pursuant to ORS 163.160(3)(c).

Conviction for felony assault in the fourth degree on Count 4 reversed;
remanded for entry of judgment of conviction for misdemeanor assault in the fourth
degree on Count 4, and for resentencing; otherwise affirmed.